Posts tagged procedural fairness

Student politics is a nasty business. Universities, for their part, need to respect the process and keep a distance while having the courage and wisdom to act when a student’s conduct goes to far.

The case ofTefler v. The University of Western Ontario (CanLII) involves one student leader who was elected president of the graduate students’ society, only to have it slip through his fingers after the election was contested. The speaker of the society – the one responsible for deciding these issues – ultimately found the election to have been invalid. The almost-was president had sent a series of aggressive emails to the speaker (among other behavior described in the decision), who filed a harassment complaint against him.

Several months later, the university charged him with violating the Code of Student Conduct, specifically the following:

Any conduct on the part of a student that has, or might reasonably be seen to have, an adverse effect on the reputation or the proper functioning of the University, or the health, safety, rights or property of the University, its members or visitors, is subject to discipline under this Code.

Conduct and/or behaviour also constitutes harassment, whether or not it is based on the prohibited ground of section 4.00, when it creates an intimidating, demeaning or hostile working or academic environment.

The charges then travelled the full length of Western’s internal disciplinary procedures, with a few interesting highlights:

The student was represented by a lawyer from the onset. Not just any lawyer, mind you, but Clayton Ruby (Wikipedia), whose name should be known by every law student in the country. Mr. Ruby provided written submissions in defense of the student, along with affidavits (Wikipedia) from several students connected to the dispute.

There were three different steps in the process. The student first met with Vice-Provost and was given a chance to defend himself (without a lawyer present, which was only allowed on appeal). The Vice-Provost found him guilty and the student appealed to the University Student Discipline Committee, and then to the President – neither of which worked. Many universities only have a two-step process.

At the court level, the student made three main arguments:

1. Refusing to allow legal representation at the meeting with the Vice-Provost was unfair. The student maintained that he should have been entitled to have Mr. Ruby present then because (1) the allegations against him were serious; and (2) the possible consequences included expulsion – so there were important interests at stake.

But the court disagreed. Inviting in lawyers would only complicate the process and make it more costly, and in this case the stakes were not nearly high enough. The student had plenty of an opportunity to present his case in a fair process without having his lawyer standing in the room. But the court issued a strong warning to universities that might prohibit lawyers from these sorts of hearings no matter the details:

However, this decision should not be taken to condone the prohibition of legal counsel in every disciplinary proceeding of the University at the initial stage. In exceptional cases, …, where the stakes are not merely theoretically but realistically high for the student, the University may be well advised to consider permitting legal counsel to be present in the meeting with the Vice Provost or the Dean, as failure to do so may render the decision vulnerable to attack on the grounds of procedural unfairness.

2. It was unreasonable to consider the student’s conduct to amount to harassment. The student maintained that harassment involves repetition, coercion or the threat of coercion and an affront to another person’s dignity, thus the decision should be quashed.

The court disagreed and found that the university’s decision was reasonable in any event.

3. The university’s decision infringed the student’s right to free speech under the Charter of Rights and Freedoms. The student here referred to the Pridgenand Whatcott decisions, both of which relate to the application of the Charter to universities (see here for more discussion on that).

The court disagreed that the Charter applied to Western and the issue stopped there. Following Pridgen, universities have been concerned about the Charter applying to them, but several recent court decisions have distinguished Pridgen on the basis that the legislation connected to the University of Calgary is unique.

Here are the take-aways from this case for universities:

If your policies flatly prohibit a student from inviting a lawyer to participate in any internal hearing, that should be changed to make an exception (at the least) for situations where important interests are at stake.

Look at your governing legislation in light of Pridgen to try to anticipate whether the Charter argument is headed your way.

Here are the take-aways from this case for students:

Not everything that happens in the political realm stays there. The most successful politicans aren’t there by accident. They are incredibly cautious in nearly everything they do, especially when it has to do with their opponents. Watch yourself, particularly if you feel you’ve been wronged.

Sometimes it pays to hire a lawyer. These types of cases generally result in a win for the university. The ones that don’t wind up in court are the ones that are dealt with properly early on.

Increasingly, students are calling lawyers when their degrees are in jeopardy.

On a fairly regular basis, students at every educational institution are accused of academic or non-academic misconduct. This includes cheating on exams, copy-and-pasting on essays without attribution, harassing another student, and so on. Often, the professor or other staff member who notices or hears of it will let it go without a big fuss, but occasionally (and this varies by institution) a formal dispute resolution mechanism will be triggered, which involves potentially disastrous results for the student.

For example, the Office of the University Counsel at the University of British Columbia (UBC) shows comprehensive annual reports that detail the cases that went before UBC’s disciplinary committee. In 2010/2011, 39 students were brought before the committee; only one student among them appears to not have been disciplined in some way or another. In 2009/2010, 61 were accused and 58 were disciplined. Many of the penalties were letters of reprimand, zeroes in a course, assignment or exam, or suspensions from UBC.

Each of those penalties can mean something different depending on the student, and they are there for a reason: if do something wrong, then you accept the consequences. The president of each university has the legal authority (BC Laws) to impose disciplinary measures on students for academic and non-academic misconduct. But the right safeguards have to be in place to ensure the punishment fits the crime, and so students are entitled to procedural fairness, which includes, generally and to varying degrees:

the right to be heard – this means the student must be able to participate meaningfully in the disciplinary process, to know what they are accused of, why and by whom, and to have a reasonable opportunity to respond to those accusations and address any supporting evidence; and

the right to be judged impartially – this means the student must be heard without bias, otherwise the right to be heard has no value. As a result of this, many universities have multiple member panels composed of professors from various different faculties to reduce the likelihood of bias dictating the outcome.

Because of the implications of disciplinary measures on a student’s future, the legal requirements of procedural fairness in this area include the right to an appeal, which for universities means the right for the student to have the disciplinary committee’s decision reviewed by another committee of the university senate or the senate itself. Also, there is a right to be represented or assisted by legal counsel, which few students can actually afford but which can be incredibly important depending on the circumstances.

These procedures don’t only have to be procedurally fair, they have to be substantially fair too. The process is meaningless if the outcome is completely illogical or disconnected from the facts and arguments presented.

These rules are reviewed in this recent decision (CanLII) from a court in Newfoundland involving Memorial University and this one (CanLII) from a couple of years ago involving UBC. Students and universities regularly go through these procedures and wind up in court, where more often than not the judge defers considerably to the university. Getting to that point costs the university a lot, so neither party really ends up happy in the end, which makes it essential for everyone involved to devote their resources to resolving these issues early on.

Universities, for their part, know this is simply a fact of doing business. Students break codes of conduct all the time, so the right process has to be there and the issue has to be confronted. The average student, however, will likely never have to know much about this part of the university experience, and if they do get a letter or email with the bad news there is a strong temptation to deny it’s a problem, to procrastinate in dealing with it or to think they can handle it on their own.

Big mistake.

Instead, here are some general suggestions on how a student should approach the issue:

Understand as soon as possible what is going on and prioritize it. If a professor or anyone else has accused you of doing something wrong, try to speak to them. Ask for a meeting – soon. Review any correspondence you have received and think seriously about how to respond, especially if the professor or the university seems to be unaware of a key piece of information. Be active and do not let it sit. Confront it and make sure you do whatever needs to be done in the right time. Look over your university calendar to see what the allegation means and how the process is supposed to unfold.

Connect with a student advocacy office. Most universities have relatively helpful advocacy centres generally maintained by student societies where students accused of misconduct can be assisted by a student advocate, who is often a law student. For example, have a look at the AMS Advocacy Office site at UBC.

Try to understand where the university is coming from. One of the hallmarks of maturity is putting your feet in someone else’s shoes. Most people do not go through life looking for a fight. Most university employees, including professors, believe in education; they want good students to get good grades and then to get good jobs and lead happy lives. On the flip side, they want bad judgment to meet bad consequences; to show students that rules have meaning; and to prove to themselves, their superiors and their colleagues that they have integrity and are tough but fair.

If you found the advocacy office unhelpful or think you need further advice, it may be appropriate to call a lawyer with experience in the area. Keep the following points in mind:

You get what you pay for. University advocacy services are free, but lawyers are not. They are professionals outside the university with years of legal training and experience. It cost them a lot to get there, and their services have a value determined by the marketplace. You can surf legal or university websites all you want, but an hour with an expert can give you infinitely more. Also, older lawyers generally cost more than younger lawyers. You have to do your own cost/benefit analysis.

Understand how lawyers work. Most lawyers charge by the hour for their services. This includes telephone conversations, meetings, doing research – any time they spend working for you will wind up on a bill. Multiply that time by their hourly rate (which you should ask for in advance) and you end up with the amount you will have to pay, plus taxes and disbursements. They need certain personal information from you, like your name, telephone number and address, and will usually insist on a retainer payment before spending much time.

Try to make their job as simple as possible. To cut down on lawyer fees, make sure you are as organized as possible and can clearly explain what you want from them. Be prepared for meetings or scheduled telephone conversations by organizing documents or writing out what you want to say or ask in advance. Always leave messages if you call them, and try to respond as promptly and exhaustively as possible to everything being discussed.

Listen to the caveats and disclaimers. If meet a lawyer at a party, run through your circumstances over a beer, and then ask whether or not you are in the right, you can almost be sure that you shouldn’t bank on the answer. That’s like asking a doctor for a diagnosis while sky-diving. Legal services, like medical services, need to be comprehensive and delivered in the right setting to have any significant value. Cutting corners will not get you far and shouldn’t help you sleep better at night. A good lawyer will toss in enough caveats and disclaimers to avoid sounding awkward (e.g. “this is information, not advice”, “I can’t really give you an opinion without looking at the documents”, etc.) – pay attention to those.

Hiring a lawyer does not mean they can work magic or change the past, but it does mean you will have someone in your corner with expertise when it comes to your rights and obligations as a student.

Pamela Fayerman at the Vancouver Sun has been reporting over the past two weeks about accusations that high-profile or influential parents have crossed the line in their efforts to get their kids a seat in the University of British Columbia (UBC) medical school program.

The story began with a memo obtained by the Vancouver Sun that was written by Denis Hughes, a former admissions director, where Hughes criticizes certain allowances made to applicants, particularly where the parents of an applicant have intervened in an apparent effort to get special treatment.

Despite the concerns identified by Hughes in the memo, UBC appears to come off pretty well in the various news stories. The admissions people refused to accommodate MLA Ido Chong, who apparently sent a letter at the request of the CEO of the Vancouver Island Health Authority regarding the CEO’s son.

Universities need a certain amount of discretion when making decisions about who to admit. Absolute transperancy would be unreasonable, but – obviously – each student’s application should be subject to the same procedure and fairness must be paramount for the admissions process to have any integrity.

For its part, UBC has a relatively comprehensive set of rules and safeguards surrounding its admissions process. The UBC Calendar includes various admissions policies and there is even a two-level appeals process for unsatisfied applicants.

Of course, there can always be holes and even the right rules need to be followed to have any value. Plus, any allegations of impropriety should be scrutinized. But it’s important to keep things in perspective.

There have been a series of court decisions dealing with admissions that may be helpful for universities interested in revising their admissions policies or ensuring that institutional practices are kept in line (see here and here for examples from CanLII).

One of the most important lessons in life is that how you do something can be just as, if not more, important than what you do. Using an illegitimate process, particularly if you are in a position of power, can negate any benefits of a decision, no matter how wise or noble that decision may be.

This lesson was brought home to a school principal earlier this month across the provincial border in the decision of the Honourable Mr. Justice Macleod of the Court of Queen’s Bench in J.O. v. Strathcona-Tweedsmuir School(CanLII). The facts of the case are nearly as interesting as the reasoning behind the outcome. J. was a student at a well-known independent school in the Calgary area with an excellent reputation (the judge characterized it as a “high-end private school”). She was a reasonably good student but was struggling with her studies in grade 11. Then her real troubles began.

The school’s annual Christmas formal dance for students in grades 10, 11 and 12 was planned for December 11, 2006 at the Calgary Golf and Country Club. J. and her 15 year-old boyfriend P. attended a pre-dance party at a student’s home. The parents of the hosting student arranged for a limousine to drive the students from the party to the dance, during which time J. had some drinks. Shortly after arriving at the dance, J. felt nauseous and thought she was going to be sick. She asked P. to help her and wanted him to join her in the ladies washroom, where students kept coming in and out. During that time, a woman at the club noticed that the door to the ladies washroom was closed. When we opened it, she claimed she saw J. and P. doing something inappropriate. Another member of their group – Mrs. Lougheed (a very prominent member of the community) – went straight to one of the teacher chaperones and told him a young couple was in the washroom “going at it”.

The next morning the school principal called Mrs. Lougheed, who described to the principal what she had seen in the washroom. The clear implication of her description was that the two students were having sex. The principal apologized for the incident and assured her he would severely discipline the students involved. The next day he spoke with J. He explained what had been reported about her. She asserted they her and P. definitely not having sex. The principal told her this was a serious issue; she should not to come school the next day and there would be a meeting with her parents. The principal never gave J. the name of the witness he spoke to.

The principal was clearly concerned about the reputation of the school and concluded that J. simply confirmed her and P. were engaged in inappropriate behavior, whether or not they were actually having sex. Two students approached the school guidance counsellor to explain what they had seen in support of J.’s version of events, but the principal (who was told of this testimony) never followed up with the students. Instead, the principal met with two other senior administrators within the school and concluded that J. should be expelled, but J.’s parents should be given the option of having her withdraw. The decision to expel J. was presented to J.’s parents as a done deal the next day at their meeting. J.’s parents were furious and the meeting unravelled. J. never returned to the school but no formal expulsion was issued.

The court in this case was confronted with the following central issue: whether the school, in investigating and responding to J.’s conduct, had a duty of fairness and, if so, whether it fulfilled that duty. Fundamentally, this is about abiding by a contract. J.’s parents had a contract with the school for J. to receive instruction. An implied term of that contract was to treat J. fairly and thus the court quickly confirmed the school owed J. a duty of fairness but focused primarily on what standard was imposed on the school by that duty.

The court maintained that the content of the duty of fairness depends on the circumstances of each case. Relevant factors include:

the nature of the decision being made and the process followed in making it;

the importance of the decision to the individual(s) affected; and

the legitimate expectations of the person challenging the decision.

Several other factors were cited by the court, but even that list was determined to be non-exhaustive. Essentially, the underlying value is that the individual affected should have the opportunity to present their case fully and fairly, and decisions affecting their rights should be made using a fair, impartial and open process, given the context of the decision.

The court acknowledged that schools are not courtrooms and these sorts of decisions should not invite the same standard of due process. The court referred to an excerpt from Schools and Students: Legal Aspects of Administration (Toronto: Carswell, 1998) by W.H. Giles, which was quoted in Gianfrancesco v. Junior Academy Inc.:

It is evident to any intelligent teacher or principal that the strict application of Re Gault would be perversion. Of course, natural justice must apply in the schools, but to turn them into judicial circuses would encourage disrespect for both the schools and the courts… In fact, the schools would have to close, and close permanently, for there would be no time to teach and no point in teaching, since discipline delayed is discipline destroyed. In fact, federal courts often minimize the adherence to procedural rights of people charged with misconduct.

In any event, the court utimately sided with J. and found that the school failed to satisfy its duty of fairness. There were several factors that weighed heavily on the court’s decision:

The school had violated section 21 of the Private School Regulation(CanLII), requiring the school to have written rules dealing with suspension or expulsion of students. As well, the regulation specifically required the school to adhere to principles of fundamental justice.

J.’s education was clearly of considerable importance to her and her parents, and they had a legitimate expectation that J.’s conduct at the dance would be dealt with seriously.

No one at the school took the time to consider J.’s side of the story. She was not given notice of the case against her and had no opportunity to respond to it.

The person that told the principal J. and P. were “going at it” did not testify at trial and nothing the school’s other witnesses said contradicted J.’s assertion that her and P. were definitely not having sex.

Macleod J. issued a strong condemnation of the school’s decision, saying it smacked of “a rush to judgment”, was a “miscarriage of justice” and “no fair-minded person who had heard the evidence I heard could have concluded that expulsion was fair”. The school’s administrators appeared to be motivated to protect the school’s reputation and sacrificed J. in the process:

[Schools] have considerable latitude in disciplining students. However, expulsion is rightly characterized as the ultimate punishment a school can mete out and both students and parents reasonably may expect that such a drastic punishment will not be imposed arbitrarily. Even serious infractions of [the school's] rules did not necessarily give rise to expulsion. Another student who was caught drinking at the same dance was stripped of his prefecture and placed on probation, but was not expelled. Had the school made a more thorough investigation and taken into consideration the accounts of all witnesses, it is extremely unlikely J. would have been expelled… [The] school may have the right to be wrong, but it must be fair.

Expulsion appeals have become increasingly in common in other Canadian jurisdictions, and legislatures have moved to direct those appeals to administrative bodies to avoid a direct recourse of parents and students to the regular court system. For example, with respect to public schools, the student discipline provisions of the Ontario Education Act and regulations were amended in 2008 to include additional factors a school board must consider when enforcing an expulsion, appeals of which will be heard by the Child and Family Services Review Board (CFSRB). These amendments provide school boards with the authority to consider the student’s conduct outside of school. In J.G. v. Kawartha Pine Ridge District School Board(CanLII), the CFSRB quashed a school board’s decision to expel a student for smoking marijuana off school premises and sharing it with his friends. The school board held a hearing on the matter and accepted the recommendation of the school principal that the student be expelled. The student was informed of the decision without any reasons for the decision. The CFSRB’s ruling against the school board was upheld by the Ontario Divisional Court.

In British Columbia, a school board’s power to expel a student is set out in section 85(3) (BCLaws) of the School Act:

Despite any other provision of this Act, a board may refuse to offer an educational program to a student 16 years of age or older if that student

(a) has refused to comply with the code of conduct, other rules and policies referred to in section 6, or

(b) has failed to apply himself or herself to his or her studies.

Parents and students who want to appeal an expulsion decision made by a board employee can appeal to the board; if they are unsatisfied, they can appeal further to the Superintendent of Achievement under section 11.1 (BCLaws). This latter appeal process is maintained by the Student Appeals Branch of the Ministry of Education. The Appeals Regulation (Ministry of Education) clearly sets out under section 2(2)(a) that an expulsion is an eligible ground for this secondary appeal. Here is a pamphlet about the Student Appeals Branch with useful information.

The Independent School Act does not appear to include similar provisions or regulations with respect to independent schools, but the Federation of Independent School Associations has put out a helpful guide for schools, parents and students with respect to procedural fairness, which has been posted on the website of the Ministry of Education.

An expulsion may have serious consequences on a student. Principals and school board should only reach such a decision cautiously and with considerable justification. Hearsay should not be relied on. There should be a good faith opportunity for the student to be heard. Students subject to an expulsion or suspension should insist upon procedural fairness within the sort of reasonable limits discussed above.